Burial fees called 'improper taxes'

Funeral director gains another win in legal battle

Death is certain, but burial permit fees are not, according to the Massachusetts Appeals Court.

A Fall River funeral director yesterday won another round in his battle to prod the state's cities and towns to eliminate the fees, which he argues are taxes in disguise.

In a five-page decision, the court ruled that burial fees charged in Attleboro, New Bedford, and Taunton are "improper taxes."

"A municipality should not be able to justify an otherwise invalid tax merely by providing an accounting of expenses," which is what the municipalities did to justify their fee structure, according to the court's decision.

While city officials predicted the ruling will make it harder to enforce their regulations and collect other fees, those behind the suit said it lightens the burden for grieving families.

The issue first arose in 2003, when Paul F. Silva, a funeral director at Silva-Faria Funeral Homes in Fall River and Somerset, convinced a court that Fall River had unfairly imposed fees that were really taxes.

In that case, the court ruled that the "burial permit charge is better characterized as a tax than a fee because the payer of the fee derives no benefit that is not shared by the general public and it does not appear in the record that the funds are used to defray the cost of enforcing relevant regulations."

The ruling was upheld on appeal. Martin A. Silva, Paul Silva's brother, said the previous ruling "allowed a little wiggle room and forced our having to take on some other cities and towns to get this thing declared an illegal tax once and for all."

The brothers again filed suit in 2005. Culminating with yesterday's decision, that case reached the appeals court last year.

Martin Silva, a funeral director at Silva-Faria who is also the attorney who represented his brother in both cases, said the family's century-old business was acting on principle.

The fees, he noted, are nominal, especially in a business that often charges relatives of the dead a lot of money. Attleboro, for example, charges $10 each for about 300 burial permits a year; New Bedford charged $20 in fiscal 2006 for each of its 1,226 burial permits; and Taunton charged $10 in fiscal 2005 for 564 burial permits.

"Why should the families facing a death have to pay an illegal tax?" said Martin Silva. "It's illegal, and they shouldn't get away with it. It's as simple as that."

City officials plan to appeal the ruling to the state Supreme Judicial Court.

"This decision sounds the death knell for a lot of other municipal fees that fund critical regulatory enforcement and public health services in cities and towns," said Steven Anthony Torres, the city attorney for Taunton and lead counsel in the cities' defense. "There's going to be a domino effect, and there will be a challenge to other fees. This decision will cause financial difficulties and inhibit our ability to perform other regulatory and public health laws, including environmental, zoning, and development issues."

Officials from New Bedford and Attleboro did not return calls seeking comment.

In yesterday's decision, the court granted that the cities' fees "were charged not to raise revenue, but to compensate for the expenses in issuing the permits."

It said that was the only distinction between Silva's initial case and the latest suit.

"There is no question that the issuance of burial permits has a shared public benefit and that the services provided are involuntary in a way that is distinct from the typical regulatory fee," according to the decision.

But the court ruled that the fees should be viewed as taxes because they were charged in exchange for a service benefiting the party paying the fee and by other members of society.